David Hertelendy v. Agway Insurance

David Hertelendy appeals a summary judgment dismissing his personal injury complaint against Agway Insurance Company. David contends that the trial court erred by concluding that his father, Clarence Hertelendy, owed David no duty at the time of the accident because David voluntarily confronted an open and obvious hazard. We conclude that the trial court erroneously concluded that Clarence owed David no duty. However, because the trial court correctly determined that David was more negligent than Clarence as a matter of law, we affirm the judgment. The facts, as asserted by David, are as follows: In 1988, David, a forty-year-old dentist, was helping Clarence cut down a tree at Clarence's cottage. An electrical wire ran parallel to the road approximately twenty feet away from the tree. Clarence made cuts on both sides of the tree, and David pushed the tree from one side so that it would not fall on the power line. Before Clarence had cut all the way through the tree, it fell on the power line. Clarence then cut four feet off the bottom of the tree, causing the tree to swing on the wire until it was perpendicular to the ground. David noticed that the part of the tree touching the wire was on fire. Because the tree was hollow, the inside was also on fire and fire shot from inside the tree to the ground. David took off his sweatshirt and beat the ground with it, attempting to put out the fire.